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stroying the king's armour or stores of war. To which may be added a fifth, 5. Desertion from the king's armies in time of war.
1. Offences relating to the coin (4), under which may be ranked some inferior misdemeanors not amounting to felony, are thus declared by a series of statutes which I shall recite in the order of time. And, first, by statute 27 Edw. I. c. 3. none shall bring pollards and crockards, which were foreign coins of base metal, into the realm on pain of forfeiture of life and goods.
By statute 9 Edw. III. st. 2. no sterling money shall be melted [ *99 ] down, upon pain of forfeiture thereof. *By statute 17 Edw. III.
none shall be so hardy to bring false and ill money into the realm, on pain of forfeiture of life and member by the persons importing, and the searchers permitting such importation (5). By statute 3 Hen. V. st. 1. to make, coin, buy, or bring into the realm any gally-halfpence, fuskins, or dotkins, in order to utter them, is felony; and knowingly to receive or pay either them or blanks (r) is forfeiture of an hundred shillings. By statute 14 Eliz. c. 3. such as forge any foreign coin, although it be not made current here by proclamation, shall (with their aiders and abettors) be guilty of misprision of treason : a crime which we shall hereafter consider (6). By statute 13 & 14 Car. II. c 31. the offence of melting down any current silver money shall be punished with forfeiture of the same, and also the double value: and the offender, if a freeman of any town, shall be dis-, franchised ; if not, shall suffer six months' imprisonment. By statute 6 & 7 W. III. c. 17. if any person buys or sells, or knowingly has in his custody, any clippings, or filings, of the coin, he shall forfeit the same and 500l.; one moiety to the king, and the other to the informer; and be branded in the cheek with the letter R. By statute 8 & 9 W. III. c. 26. if any person shall blanch or whiten copper for sale (which makes it resemble silver); or buy or sell, or offer to sell any malleable composition, which shall be heavier than silver, and look, touch, and wear like gold, but be beneath the standard: or if any person shall receive or pay at a less rate than it imports to be of (which demonstrates a consciousness of
(T) 2 Stat. Hen. VI. c. 9. (4) See note 16, p. 88.
such foreign coin, is a felony punishable with (5) Repealed by 59 Geo. III. C. 49.9 10. seven years'transportation. And by the same which enacts, " That it shall and may be law. act, (sect. 6.) having in custody, without law. full for any person or persons to export the gold ful excuse, more than five pieces of bad coin, or silver coin of the realm to parts beyond the is punishable with a forfeiture of not exceed. seas, and also to melt the gold and silver coin ing 51. nor less than 40s. for every piece. By of the realm, and to manufacture or export, or sect. 3. importing counterfeit gold or silver, otherwise dispose of the gold or silver bullion foreign coin, not current, with intent to utter, produced thereby; and no person who shall is felony, punishable with transportation for export or melt such gold or silver coin, or who not exceeding seven years. Importing with shall manufacture, export, or dispose of such an intent to utter, is a sufficient offence within bullion, shall be subject to any restriction, for the act. 1 East. . C. 176. And by 43 Geo. feiture, pain, penalty, incapacity, or disability III. c. 139. s. 3 counterfeiting foreign coin, not whatever, for or in respect of such melting, current by proclamation, but resembling copmanufacturing, or exporting the same respec- per or mixed metal coin of a foreign state, is tively; any thing in any Act or Acts in force a misdemeanor, punishable, for the first of. in Great Britain or Ireland to the contrary sence, by not exceeding one year's imprisonthereof in anywise notwithstanding." ment, and for the second, transportation for
(6) See post, 120. The importation of fo- seven years. And sect. 6. inflicts a penalty of reign bad coin is further provided against. not exceeding 40s. nor less than 108. for every Thus, by the 37 Geo. III. c. 126. s. 2. coining such piece of coin in possession of a person or counterfeiting any kind of coin, not the pro- who shall have more than five pieces in his per coin of the realm, nor permitted to be cur- custody, without lawful excuse. And by sect. rent (id est, by proclamation under great seal) 7. houses of suspected persons may be search. within it, but resembling, or made with intent ed by warrant for such counterfeit coin to resemble, or look like any gold or silver See also 3 Geo. IV. c. 114, coin of any foreign state, &c. or to pass as
its baseness, and a fraudulent design) any counterfeit or diminished milled money of this kingdom, not being cut in pieces (7); (an operation which is expressly directed to be performed when any such money shall be produced in evidence, and which any person, to whom any gold or silver money is tendered, is empowered by statutes 9 & 10 W. III. c. 21, 13 Geo. III. c. 71, and 14 Geo. III. c. 70, to perform at his own hazard, and the officers of the exchequer and receivers general of the taxes are particularly required to perform :) all such persons shall be guilty of felony; and may be prosecuted for the same at any time within three months after the offence committed. *But these precautions not being (*100] found sufficient to prevent the uttering of false or diminished money, which was only a misdemeanor at common law, it is enacted by statute 15 & 16 Geo. II. c. 28. that if any person shall utter or tender in payment (8) any counterfeit coin, knowing it so to be, he shall for the first offence be imprisoned six months, and find sureties for his good behaviour for six months more ; for the second offence, shall be imprisoned two years, and find sureties for two years longer; and for the third offence, shall be guilty of felony without benefit of clergy (9). Also, if a person know
(7) Selling base and counterfeit money at iron stamps, with intent to impress the scepa lower rate ihan its denomination imports, as tres on sixpences. The court, after hearing twenty bad half crowns for a guinea, is a two arguments, declared, "the intent is the crime of great magnitude, and in populous offence, and the having in his custody is an towns is much practised. The offender in this act that is the evidence of that intent." case is either the coiner himself, or the whole
inore fully reported in Cases in sale dealer between the coiner and the utterer, the Time of Lord Hardwicke, 370 ; and there who puts each piece into circulation at its full it appears that one count was for having in his apparent value. The statute declares that the custody a counterfeit half-guinea, with intent offender shall suffer death as in case of felony; lo utter it. The court take no notice of that but not having expressly taken away the bene- count in their judgment. But in the argument fit of clergy, for the first offence he was sub- four indictments are cited, for unlawfully project only to be burnt in the hand, and to suffer curing false money with intent to utter it, any imprisonment not exceeding a year; and and with intent to defraud the people of Engsince the 19 Geo. III. c. 74, the burning in the land. hand may be changed by the court into a fine, The words in the statute 15 and 16 Geo. II. or whipping publicly or privately, but not more are “shall utter, or tender in payment;" and than three times. An offender of this descrip- it has been decided that the words in payment tion must necessarily be so conversant with refer to the word tender only, so that to tender coining or coiners, that public policy requires in payment is one offence, and to utter is an. that in the first instance he should be sent out other; and a man was convicted of uttering, of the kingdom.
who having received a good shilling, immedi. It has been determined that the term milled ately changed it, and gave back a bad one, inmoney, does not mean edged inoney, or money sisting it was the one he received. Frank's marked on the edges.
case, Leach, 736. The word milled seems to be superfluous, If a man is prosecuted for having uttered, and to signify nothing more than coined mo- or tendered in payment, any false mony, and ney. Running's case, Leach, 708.
for having done the same within ten days afIn a case where the prisoner had counted out terwards, these two acts must be charged in & quantity of bad money, and placed it upon a one count. Tandy's case, Leach, 970. table for a person who had agreed to buy it, But it is not necessary to aver in such count, but before it was paid for, and whilst it lay that the defendant was a common utterer of upon the table, the prisoner was apprehended, false money. Smith's case, Ib. 1001. it was held that he had not paid it or put it off, (8) It is now settled, that the mere act of so as to be guilty of this crime. Wooldridge's having counterfeit silver in possession, with case, Leach, 251.
an intent to utter it as good, is no offence, for But in this case he certainly might have there is no criminal act done. Russ. & R. been prosecuted for a misdemeanor; for every C. C. 184. 288. But procuring base coin, with attempt to commit either a felony or a misde intent to utter it as good, is a misdemeanor ; meanor, is a misdemeanor. R. v. Scofield, and having a large quantity of such coin is Cald. 397.
evidence of having procured it with such inThe R. v. Sutton, 2 Str. 1074, which is the tent, unless there are other circumstances to basis of the cases, R. v. Scofield, and R. v. induce a suspicion that the defendant was the Higgins, 2 East, 5, is precisely in point upon maker. Russ. & R. C. C. 308. this subject. A man was convicted of a mis. (9) By the 3 Geo. IV. c. 114. the prisoner demeanor, for having in his possession two may be sentenced to hard labour. The rewad
ingly tenders in payment any counterfeit money, and at the same time has more in his custody; or shall, within ten days after, knowingly tender other false money ; he shall be deemed a common utterer of counterfeit money, and shall for the first offence be imprisoned one year, and find sureties for his good behaviour for two years longer; and for the second, be guilty of felony without benefit of clergy. By the same statute it is also enacted, that if any person counterfeits the copper coin, he shall suffer two years' imprisonment, and find sureties for two years more. By statute 11 Geo. III. c. 40. persons counterfeiting copper half-pence or farthings, with their abettors; or buying, selling, receiving, or putting off any counterfeit copper money (not being cut in pieces or melted down) at a less value than it imports to be of; shall be guilty of single felony (10). And by a temporary statute, (14 Geo. III. c. 42.) if any quantity of money, exceeding the sum of five pounds, being or purporting to be the silver coin of this realm, but below the standard of the mint in weight or fin ess, shall be imported into Great Britain or Ireland, the same shall be forfeited in equal moities 10 the crown and prosecutor (11). Thus much for offences relating to the coin, as well misdemeanors as felonies, which I thought it most convenient to consider in one and the same view. 2. Felonies, against the king's council (s), are these. First, by statute 3
Hen. VII. c. 14. if any sworn servant of the king's household [*101] conspires or confederates to kill any lord of this *realm, or other
person, sworn of the king's council, he shall be guilty of felony. Secondly, by statute 9 Ann. c. 16. to assault, strike, wound, or attempt to kill, any privy counsellor in the execution of his office, is made felony without benefit of clergy.
3. Felonies in serving foreign states (12), which service is generally incon. sistent with allegiance to one's natural prince, are restrained and punished by statute 3 Jac. I. c. 4. which makes it felony for any persons whatever to go out of the realm, to serve any foreign prince, without having first taken the oath of allegiance before his departure. And it is felony also for any gentleman, or person of higher degree, or who hath borne any office in the army, to go out of the realm to serve such foreign prince or state, without previously entering into a bond with two sureties, not to be reconciled to the see of Rome, or enter into any conspiracy against his natural sovereign. And farther, by statute 9 Geo. II. c. 30. enforced by statute 29 Geo. II. c. 17. if any subject of Great Britain shall enlist himself, or if any person shall procure him to be enlisted, in any foreign service, or de
(s) See Book I. page 334. given by the 15 Geo. II. c. 7. is taken away by the 19 Geo. III. in all cases of felony, which 58 Geo. III, c. 70.
had the benefit of clergy, was burning in the (10) The 15 & 16 Geo. II. c. 28, and the 11 hand; and imprisonment for any time, at the Geo. III. c. 40. specify halfpence and farthings discretion of the judge, not more than for one only; but other pieces of copper money hav. year, under the 18 Eliz. c. 7, 9 3. By the 19 ing been since coined, the provisions of those Geo. III. c. 74. hurning in the hand may be statutes, by the 37 Geo. III. c. 126. are extend changed at the discretion of the judge into a ed to all other pieces of copper money which fine, or whipping not more than three times. are ordered to be current by the king's procla. See p. 372. post. mation. A remarkable error is made in two (11) This statute, by the 39 Geo. III. c. 74. different pages of Mr. East's publication upon is revived and made perpetual. criminal law, which states the punishment for (12) The serving a foreign state seems pucoining copper money, and for selling counter- nishable in the U. S. only when that state is at feit money for less than its denomination im war with another state with which the U. S. ports, to be only burning in the hand, and im- are at peace. See Story's laws U. S. 1694. prisonment not exceeding a year.
i Cast P. As to embezzlement and desertion, see id. C. 162.& 181. But the punishment before 992, &c.
tain or embark him for that purpose, without licence under the king's sign manual, he shall be guilty of felony without benefit of clergy; but if the person so enlisted or enticed, shall discover his seducer within fifteen days, so as he may be apprehended and convicted of the same, he shall be indemnified. By statute 29 Geo. II. c. 17. it is moreover enacted, that to serve under the French king, as a military officer, shall be felony without benefit of clergy; and to enter into the Scotch brigade in the Dutch service, without previously taking the oaths of allegiance and abjuration, shall be a forfeiture of 5001. (13).
4. Felony by embezzling or destroying the king's armour or warlike stores, is, in the first place, so declared to be by statute 31 Eliz. c. 4. which enacts, that if any person having the charge or custody of the king's armour, ordnance, ammunition, or habiliments of war ; or of any victual provided for victualling the king's soldiers or mariners; shall, either for gain, or to impede his majesty's service, embezzle the same *to the value of [*102] twenty shillings, such offence shall be felony. And the statute 22 Car. II. c. 5. takes away the benefit of clergy from this offence (14), and from stealing the king's naval stores to the value of twenty shillings, with a power for the judge, after sentence, to transport the offender for seven years. Other inferior embezzlements and misdemeanors, that fall under this denomination, are punished by statutes 9 & 10 W. III. c. 41, 1 Geo. I. c. 25, 9 Geo. I. c. 8, and 17 Geo. II. c. 40, with fine, corporal punishment, and imprisonment (15). And by statute 12 Geo. III. c. 24. to set on fire, burn, or destroy any of his majesty's ships of war, whether built, building, or repairing; or any of the king's arsenals, magazines, dock-yards, rope-yards, or victualling offices, or materials thereunto belonging ; or military, naval, or victualling stores, or ammunition; or causing, aiding, procuring, abetting, or assisting in, such offence ; shall be felony without benefit of clergy.
5. Desertion from the king's armies in time of war, whether by land or sea, in England or in parts beyond the sea, is by the standing laws of the land (exclusive of the annual acts of parliament to punish mutiny and desertion) and particularly by statute 18 Hen. VI. c. 19. and 5 Éliz. c. 5. made felony, but not without benefit of clergy. But by the statute 2 & 3 Edw. VI. c. 2. clergy is taken away from such deserters, and the offence is made triable by the justices of every shire. The same statutes punish other inferior military offences with fines, imprisonment, and other penalties (16)
(13) These statutes of 9 Geo. II. and 29 seven years. Geo. II. are repealed by the 59 Geo. III. c. 69. (15) By the 39 & 40 Geo. III. c. 89. s. 1. which re-enacis and adds to their provisions, persons, other than contractors, receiving or and by it the entering into, or agreeing to en- having stores of war in their possession, may ter into, the aid of a foreign prince or people, be transported for fourteen years; and by sec. &c. in any warlike capacity whatever, or go. 2. persons convicted of offences against the 9 ing abroad with that intent, or attempting to & 10 Wm. III. may, in addition to the punishget others to do so, is a misdemeanor, and pu. ment therehy to be inflicted, be punished with nishable by fine or imprisonment, or both; and whipping and imprisonment, or either, but the a penalty of 501. is imposed on masters of penalty may be mitigated. ships and owner for assisting in the offence; (16) To this class of felonies injurious to there are further provisions for preventing the the king's prerogative, may be added two offence.
felonies lately created by the legislature, who (14) This provision of the statute 22 Car. thought it expedient to repress the attempts of II. c. 5, which takes away the benefit of the mischievous and disaffected persons, by transclergy, in repealed by the 5 Geo. IV. c. 53, portation or capital punishment. The 37 and offenders may be transported for life, or Geo. III. c. 70. (revived and made perpetual for not less than seven years, or imprisoned, by the 57 Geo. Ill. c. 7.) enacts, that if any with or without hard labour, for not exceeding person shall maliciously and advisedly endea
A THIRD species of offence more immediately affecting the king and his government, though not subject to capital punishment, is that of praemunire ; so called from the words of the writ preparatory to the prosecution thereof: "praemunire (a) facias A. B." cause A. B. to be forewarned that he appear before us to answer the contempt wherewith he stands charged: which contempt is particularly recited in the preamble to the writ (b). It took its original from the exorbitant power claimed and exercised in England by the pope, which even in the days of blind zeal was too heavy for our ancestors to bear.
It may justly be observed, that religious principles, which (when genuine and pure) have an evident tendency to make their professors better citizens as well as better men, have (when perverted and erroneous) been usually subversive of civil government, and been made both the cloak and the instrument of every pernicious design that can be harboured in the heart of man. The unbounded authority that was exercised by the Druids in the west, under the influence of pagan superstition, and the terrible ravages committed by the Saracens in the east, to propagate the religion of Mahomet, both witness to the truth of that ancient universal observation, that in all ages and in all countries, civil and ecclesiastical tyranny are mutually productive of each other. It is therefore the glory of the
church of England, that she inculcates due obedience to lawful [*104] authority, and hath been (as her prelates on *a trying occasion
once expressed it) (c) in her principles and practice ever most unquestionably loyal. The clergy of her persuasion, holy in their doctrines and unblemished in their lives and conversation, are also moderate in their ambition, and entertain just notions of the ties of society and the rights of civil government. As in matters of faith and morality they acknowledge no guide but the Scriptures, so, in matters of external polity and of private right, they derive all their title from the civil magistrate ; they look up to the king as their head, to the parliament as their lawgiver, and pride themselves in nothing more justly, than in being true members of the church, emphatically by law established. Whereas the notions of ecclesiastical liberty, in those who differ from them, as well in one extreme as the other (for í here only speak of extremes), are equally and totally destructive of those ties and obligations by which all society is kept together; equally encroaching on those rights, which reason and the original con
(a) A barbarous word for praemoneri (1). in) Old. Nat. Brev. 101, edit. 1534.
(c) Address to James II, 1697
vour to seduce any person serving in her ma- pay, nor liable for what he then does to a jesty's service by sea or land from his duty and court-martial, is a person serving in the king's allegiance, or to incite any person to commit forces by sea, within the 37 Geo. III. so as to any act of mutiny or mutinous practice, he make the seducing him an offence within that shall be guilty of felony, and shall suffer death act. Russ. &. R. C. C. 76. without benefit of clergy. The crime, wher- (1) Praemunio, in law-latin, is used in all ever committed, may be tried in any county. its tenses and participles, for praemoneo or cito. A sailor in a sick hospital, where he had been Ducange Gloss. for ibirty days, and therefore not entitled to